Makkot 2b — the Talmud in English

And it was said:

And what of one who stones,

false witnesses who carried out their scheme, since they were exposed as edim zomemim only after the accused had been put to death on the basis of their testimony —

is not stoned,

because we expound “as he plotted,” but not “as he did”; since the judgment has been carried out, the edim zomemim are not punished —

all the more so a false witness

who came to stone, but did not stone [because he was exposed before the accused was put to death] —

[since he was refuted before the accused was put to death]—

is it not the law that he should not be stoned!

And if we expound the kal va-chomer in this manner, the entire Torah law to punish a false witness when the judgment was completed on the basis of his testimony, but the deed had not yet been carried out, would be uprooted.

Rather, it is clear

the matter is clear,

as

we answered initially,

that the reason for the exemption is not from a kal va-chomer, but rather because the Torah said, “to do to him”—only to him, but not to his offspring. And in the disqualification from priesthood, “as he plotted” does not apply, since he sought to disqualify him with a disqualification extending to future generations, whereas he himself is not punished by that.

We learned in the Mishna:

“We testify concerning so-and-so that he is liable to exile,” and so on.

And the Gemara asks:

From where are these words

that false witnesses do not go into exile in his place?

Reish Lakish said:

Because

the verse says

[Deuteronomy 19]: “

He shall flee to one of the cities.”

Since the word “he” serves as an exclusion, it comes here to teach that only

he,

the one who killed unintentionally, is the one who flees into exile,

but not

the false

witnesses.

But

Rabbi Yohanan said:

There is no need for an exclusion from the words of Scripture; rather, it can be learned that false witnesses do not go into exile

by a kal va-chomer:

And what of he,

the one who kills unintentionally,

who performed an act

of killing unintentionally with his hands—if he had done this

intentionally,

his law would be that he

does not go into exile.

All the more so

they,

the false witnesses,

who did not perform an act

with their hands, since the transgression of false testimony is only through speech and not through an act with the hands, but, on the other hand, their transgression was

intentional—

is it not the law that they should not go into exile

for an intentional act?

And the Gemara rejects Rabbi Yohanan’s kal va-chomer:

And it is this—

that supplies the reason!

Behold, the claim of the kal va-chomer, from which Rabbi Yohanan proved that false witnesses are exempt from exile, is itself the reason to make them liable to exile!

For we can say the opposite reasoning: The fact that one who kills intentionally does not go into exile is not because of leniency, but, on the contrary, because of severity, since the punishment of exile is not sufficient for him. If so, it can be said that specifically

he,

the killer,

who performed an act,

the Torah said concerning him: since he did it

intentionally, he shall not go into exile—

so that he should not have atonement

through exile for the act of intentional murder, which is a severe matter, and exile does not atone for it.

However,

they,

the false witnesses,

who did not perform an act

with their hands through their testimony, but only through the testimony of their mouths, it is reasonable that

they should also go into exile intentionally—

so that they should have atonement

for their plot.

Since their acts are not so severe, because they did not carry it out with their hands but only with their mouths, it is possible that there should be atonement for their speech through the punishment of exile.

And once Rabbi Yohanan’s kal va-chomer has been rejected, we conclude:

Rather, it is clear,

it is clear that the reason false witnesses go into exile is

as [stated by] Reish Lakish,

who learned this from the exclusion in Scripture: “He shall flee.”

Ulla said: A hint concerning false witnesses in the Torah—from where?

And the Gemara wonders: Do we indeed need

a hint concerning false witnesses

from the Torah?

Is it not an explicit passage in the Torah?

For it is written: “And you shall do to him as he plotted to do to his brother”!

And we explain:

Rather,

this is what Ulla asked:

A hint concerning

those

false witnesses

whom we learned in our Mishna cannot be punished with the punishment explicitly stated in the Torah, “And you shall do to him as he plotted to do to his brother,” but whose law is

that they are flogged—

what is the hint that they are flogged

from the Torah—from where?

And concerning this Ulla said: We learn a hint for this from that which

is written

in the passage concerning those liable to lashes [Deuteronomy 25:2]: “When there will be a dispute between people, and they approach the judgment, and they judge them.

And they vindicate the righteous and condemn the wicked.”

And the verse concludes:

“And it shall be, if the wicked man is liable to be flogged—

the judge shall make him lie down, and strike him before him!”

And the words of the verse require explanation: For what purpose were the righteousness of the righteous person and the judges’ decision between the two people mentioned here? Is it indeed

because “they vindicated

the judges

the righteous and condemned the wicked,”

that the continuation of the verse follows from this,

“And it shall be, if the wicked man is liable to be flogged”!?

But everything depends on the wickedness of the wicked person, and not on the decision in the dispute between the wicked person and the righteous person opposite him. For if the wicked person committed a transgression for which there is a punishment of lashes, then he is flogged, and if not, he is not flogged!

Rather,

the verse necessarily is not speaking about the judges’ decision in a dispute between a righteous person and a wicked person,

but rather

about

witnesses

who condemned the righteous person by testifying false testimony against him.

And him,

concerning this the verse said that if afterward

other witnesses

came and exposed them as false witnesses,

and

by exposing the false witnesses,

they vindicated

the witnesses who exposed them

the righteous person from the outset,

who had been righteous from the outset,

and made [A0144]them

[they render]

these

false witnesses

wicked—

that is, if this exposure is fit only for lashes, such as when it is impossible to carry out upon these false witnesses the punishment stated, “as he plotted to do to his brother,” then—

“And it shall be, if the wicked man is liable to be flogged,”

the court flogs them.

And we ask:

Let it follow,

let us learn that false witnesses should be flogged

from “You shall not answer,”

because they transgressed the prohibition “You shall not answer against your fellow as a false witness”; why do I need the verse “And it shall be, if the wicked man is liable to be flogged”? For the punishment of “as he plotted,” established for this prohibition, cannot be carried out when they came to make him the son of a divorced woman, and if so, its punishment reverts to that of all prohibitions, which are punished by lashes.

And we answer:

Because it is

the prohibition “You shall not answer,”

a prohibition that does not involve an act.

Since one transgresses it only through the speech of his testimony, and not through an act with his hands.

And every prohibition that does not involve an act—

one is not flogged for it.

Therefore, the verse “And they vindicated, and it shall be, if the wicked man is liable to be flogged” is needed to reveal that he is flogged for the prohibition “You shall not answer,” even though it does not involve an act [Tosafot below, 4b, s.v. “And the Rabbis”].

The Sages taught: Four matters were said concerning false witnesses:

a.

They do not become the son of a divorced woman or the son of a woman released by halitza,

when they testified this concerning a priest in order to disqualify him, and were exposed as false witnesses.

b.

And they do not go into exile to the cities of refuge,

when they testified concerning a person that he is liable to exile, and were exposed as false witnesses.

c.

And they do not pay the ransom,

when they testified concerning a forewarned ox that it killed a person, and through this they made its owner liable to pay a ransom, and were exposed as false witnesses.

d.

And they are not sold as Hebrew slaves,

if they testified concerning a person that he stole and has nothing with which to pay, and the court completed his judgment on the basis of their testimony, to sell him for his theft, and they were exposed as false witnesses.

In the name of Rabbi Akiva they said: They also do not pay

false

witnesses on their own testimony.

For if they were exposed as false witnesses in court, and the accused had not yet sued them to pay him for their plot to make him liable, and they went to another court and admitted there that they had already been exposed as false witnesses, they are not made liable on the basis of their admission, since the payments of false witnesses are considered payments of a fine, and one who admits liability for a fine is exempt.

and they went to another court and admitted there that they had already been refuted, they are not obligated on the basis of their admission, because the payments of conspiring witnesses are considered a monetary penalty, and one who admits liability for a monetary penalty is exempt.

The Gemara now explains the reason for the exemption in all the laws of the beraita.

a.

They do not become the son of a divorced woman or the son of a woman released by halitza, as we said—

for we expound “to him,” but not to his offspring!

b.

And they do not go into exile to the cities of refuge, as we said—

for we expound “he shall flee,” but not false witnesses.

c.

And they do not pay the ransom, because

it is that

they hold: ransom

is atonement

He holds that the obligation to pay ransom is a payment of “atonement,” in order to atone for the owner of the ox because his ox killed a person.

And these,

these witnesses,

are not subject to atonement,

for their ox did not kill a person, and therefore payments of atonement do not apply to them. And the Gemara asks:

Who is the tanna,

who is the tanna who holds that the payments of

“ransom,”

by the law of

atonement,

are [payments of atonement]?

Rav Hisda said:

The position of

Rabbi Ishmael, the son of Rabbi Yohanan ben Beroka, is [the source].

For it was taught:

It is said concerning ransom,

“And he shall give the ransom for his life”—

the value of the injured party.

That is, they assess the value of the person killed by the ox: how much he would have been worth to be sold in the marketplace as a slave, and the owner of the ox pays this sum to the heirs of the slain person.

But

Rabbi Ishmael, the son of Rabbi Yohanan ben Beroka, says:

The owner of the ox pays

the value of the damager,

his own value, to the heirs of the slain person.

What, is it not with regard to this that they disagree—

that one,

the first tanna, who said that he pays the value of the injured party,

holds that ransom is monetary compensation,

for having damaged the slain person, and therefore he pays his value to his heirs.

But

the other,

Rabbi Ishmael, the son of Rabbi Yohanan ben Beroka, who said that he pays the value of the damager,

holds that ransom is atonement,

to atone for the death at the hands of Heaven to which the owner of the ox has become liable; therefore the owner of the ox pays his own value, and thereby redeems himself from death.

The Gemara rejects this:

Rav Pappa said: No!

They did not disagree about this.

Rather,

it is possible to say that

everyone

holds that

ransom is atonement

is.

And here, with regard to this,

only the manner of assessment,

they disagree:

One holds

that the amount of the atonement is

assessed according to the value of the injured party. And its reason will be explained below.

Its reason will be explained below.

But

the other holds: it is assessed according to the value of the damager.

The Gemara now explains the reasons of the disputants:

What is the reason of the Rabbis?

What is the source of the first tanna from the Torah to assess the ransom according to the value of the injured party? For since he, too, holds that ransom is atonement, it would be logical to assess the value of the damager, so that it should be atonement for him in place of his dying himself—

It is stated

in the expression

“he shall assess”,

meaning setting,

above, concerning one who strikes a pregnant woman and causes her fetuses to miscarry, who must pay the husband of the woman the value of the fetuses. And it is stated concerning him that he shall pay “as the husband of the woman shall assess for him.”

in the case of one who strikes a pregnant woman and causes her fetuses to miscarry, who must pay the woman’s husband the value of the fetuses. And it is stated with regard to him: “he shall pay as the husband of the woman shall impose upon him”

And it is stated

in the expression

“he shall assess”,

meaning setting,

below, concerning the obligation of kofer to the owner of an ox that killed a person, as it is written: “If a kofer shall be assessed for him.”

with regard to the payment of ransom to the owner of an ox that killed a person, as it is written: “if a ransom shall be imposed upon him”

And let the obscure be learned from the explicit:

just as there,

as with one who strikes a pregnant woman,

they assess for him

his payments

according to the injured party,

for he pays the value of the fetuses that were injured.

So too here,

in the case of one whose ox killed a person, they assess the kofer payment

according to the injured party,

and he pays the value of the deceased.

And

if

Rabbi Ishmael,

who holds that he gives the value of the injurer, his source is: “

And he shall give the redemption of his soul”

is written,

the verse teaches that the kofer is the value of the soul of the owner of the injuring ox.

But

the Rabbis,

who do not learn this way, say:

No,

indeed “

the redemption of his soul”

is written,

for the kofer is atonement for the soul of the owner of the ox.

However, when we assess

the atonement obligation, how much he must pay,

we assess according to the injured party.

For through paying a kofer equal to the value of the injured party, the soul of the injurer achieves atonement from death at the hands of Heaven.

d.

And they are not sold as Hebrew slaves.

Rav Hamnuna thought to say: This matter applies

in that the conspiring witnesses are not sold as slaves only

where he himself has,

when the one whom they conspired to obligate has money, in which case, even had the witnesses not been found conspiring, he would not have been sold for his theft.

For since he is not sold,

since the defendant himself would not have been sold as a slave, therefore

they,

the conspiring witnesses,

are likewise not sold.

They too are not sold as slaves, even if they do not have money with which to pay him the penalty for their conspiracy, for they did not conspire to sell him as a slave, but only to cause him monetary loss, obligating him to pay. For this money, which they must pay for their conspiracy, they are not sold.

But where he himself does not have

money, so that had they not been found conspiring he would have been sold for his theft as a slave, then

even though they themselves have

money, they are not exempt through payment, like a thief who pays and is not sold, but

are sold

as slaves, since they conspired to sell him for his theft.

And we raise an objection: Why should they be sold as slaves when he has no money and they do?

Let them say to him,

the witnesses to the defendant: Behold,

if you had had,

if you had had money with which to pay—

would you have been sold?

Would you have been sold? You could have exempted yourself from being sold as a slave if you had paid.

And if so,

we too,

we shall pay money for having conspired to obligate you for the theft, and

we will not be sold,

so that our judgment should not be more severe than what we conspired against you.

Rather,

because of this objection, the Gemara establishes this statement in another manner—

Rav Hamnuna thought to say: This matter applies

in that the witnesses are not sold when they testified that he stole and they were found conspiring,

where he has,

when one of the two sides has money:

either

there is money

for him,

for the one against whom they testified, and they did not conspire to sell him.

Or

there is money

for them,

for the conspiring witnesses, who are exempt through payment, just as the defendant could have exempted himself through payment of money.

But where he does not have,

where there is no money

neither for him nor for them—

they are sold,

the witnesses are sold as slaves.

Rava said to him,

to Rav Hamnuna: Their exemption is not because it is possible to exempt oneself through money, but because this matter is learned from the Torah—

For

the Merciful One said

concerning a thief who does not have money with which to pay, “and he shall be sold for his theft.”

“For his theft”

And we expound: Only

for his theft

is he sold,

but not for his conspiracy!

Therefore, even when neither the thief nor the witnesses have money, the witnesses are not sold as slaves.

(And concerning lashes—see the note ).

We learned in the beraita above:

They said in the name of Rabbi Akiva,

and they also do not pay on their own admission.

And we explain:

What is Rabbi Akiva’s reason?—

He holds

that the payment obligation of conspiring witnesses for having sought to deprive him

is a penalty,

for the reason explained shortly.

And a penalty—

one who

admits to it

does not pay on his own admission.

Rabba said: Know

that their payment is considered a penalty and not a monetary obligation—

For they did not perform an act,

they did not kill him, and the witnesses did not actually cause him loss, nor was he killed or made to suffer loss through their testimony; rather, they only conspired and testified

and

nevertheless they

are killed

and

pay!

And payment without damage is considered a penalty.

Rav Nachman said: Know

that it is a penalty,

for the money is in the owners’ possession,

for they have not yet taken it out on the basis of the witnesses’ testimony,

and they pay!

And payment without loss is a penalty.